United States District Court, D. New Jersey
June 10, 2005.
The Grand Union Co.
The opinion of the court was delivered by: WILLIAM J. MARTINI, District Judge
This matter comes before the Court on The Grand Union Company's
("Grand Union") motion pursuant to Federal Rules of Civil
Procedure 59 and 60 and Local Civil Rule 7.1(g) for
reconsideration of the Court's April 18, 2005 Order dismissing
Grand Union's bankruptcy appeal for want of prosecution. For the
reasons set forth below, the motion is DENIED.
Bankruptcy Judge Novalyn L. Winfield entered an Order on August
6, 2004 that, among other things, denied bankruptcy debtor Grand
Union's motion for summary judgment and granted Americe, Inc.
("America") leave to file an administrative claim request. Six
days later, on August 12, 2004, Grand Union, through counsel
Ravin Greenberg P.C. ("Ravin Greenberg") and Weil, Gotshal &
Manges LLP ("Weil Gotshal"), filed a notice of appeal and shortly
thereafter (on August 23, 2004) filed a designation of items to
be included in the record and statement of issues to be presented
on appeal pursuant to Bankruptcy Rule 8006. The bankruptcy court
transmitted these filings to this Court on November 17, 2004.
Although Grand Union was required by rule to submit appellate briefs to this Court within
fifteen days of its appeal having been docketed, Fed.R. Bankr.
P. 8009(a)(1), the notation of this transmission on the docket
indicates that Grand Union was given until December 27, 2004.
Despite this generous briefing schedule, Grand Union never filed
any appellate brief. This Court exercised its discretion and
dismissed Grand Union's appeal by Order dated April 18, 2005 for
want of prosecution.
Counsel for Grand Union specifically, Ravin Greenberg, not
Weil Gotshal now asks the Court to reconsider this dismissal on
the ground that Grand Union's failure to submit any appellate
brief was attributable to counsel's "mistake and excusable
neglect." (See Memorandum of Law in Support of Motion for
Reconsideration [hereinafter "App. Br."].) Specifically,
counsel for Grand Union points out that the attorney who was
primarily in charge of handling Grand Union's appeal, Allan
Harris ("Mr. Harris") of Ravin Greenberg, left the firm December
31, 2004 and that "[i]t was only after [Mr. Harris] left, much
past the deadline set forth in Rule 8009, that [Howard S.
Greenberg ("Mr. Greenberg"), also of Ravin Greenberg] became
aware that a brief had not been filed." (See Cert. of Howard S.
Greenberg ¶ 10.) Because the December 27, 2004 deadline ran
several days before Mr. Harris left Ravin Greenberg, counsel for
Grand Union also notes that "[d]uring the time of filing of the
appeal, several complications made it difficult for [Ravin
Greenberg] to file a brief on Appellant's behalf, and to proceed
with the appeal." (Id. ¶ 8.)
Although dismissal of bankruptcy appeals for want of
prosecution is discretionary, courts must at least consider less
severe sanctions for a litigant's failure to prosecute its case.
See Jewelcor, Inc. v. Asia Commercial Co., Ltd., 11 F.3d 394,
397 (3d Cir. 1993). Counsel for Grand Union argues, therefore,
that this Court, rather than dismissing Grand Union's appeal for
want of prosecution, should have resorted to the less severe
sanction of either issuing an Order to Show Cause setting forth
an expedited briefing schedule or, instead, simply issuing
another briefing schedule. (See App. Br. at 4.) The Court fails
to see how giving appellant additional time to submit an
appellate brief which at the time of dismissal was already
almost four months late is an effective "sanction." Indeed, that
would be no sanction at all.
The Court can discern no other effective sanction for failure
to submit an appellate brief. As this Court has already
explained, the bankruptcy rules require appellant to file a brief
with this Court within fifteen days of an appeal having been
docketed. Fed.R.Bankr.P. 8009(a)(1). The purpose of the
briefing schedule in Bankruptcy Rule 8009 is to provide for the
expeditious resolution of bankruptcy proceedings. See Jewelcor,
11 F.3d at 397. It is clear that the purpose of the rule would be
completely thwarted were the Court to allow Grand Union to delay
indefinitely the filing of its appellate brief, without which the
Court cannot even begin to review the merits of its appeal.
Grand Union's failure to prosecute its appeal is the result of
its own neglect. Indeed, Ravin Greenberg acknowledges as much.
(See App. Br. at 4.) Unable to dispute that it had notice of
the December 27, 2004 deadline, Ravin Greenberg offers only the
vague excuse that "several complications made it difficult for
[Ravin Greenberg] to file a brief on Appellant's behalf." This neglect is all the more inexplicable considering
that Grand Union appears to have been represented in bankruptcy
proceedings not by one but in fact by two different law firms,
the other Weil Gotshal being known for the strength of its
bankruptcy practice. (See Notice of Appeal dated Aug. 12,
Finally, there is evidence suggesting that Grand Union's
failure to prosecute its appeal simply reflects its history of
proceeding in a dilatory manner. That is, during the bankruptcy
court's October 4, 2004 telephone conference with counsel for
Americe and with Ravin Greenberg regarding, among other things,
the instant appeal, Judge Winfield stated: "I actually find this
issue of appeal a little bit frustrating. [Grand Union] has had
an astonishing disinclination to try this case. It's been
difficult to get this to final conclusions. . . . I'm tired of
fooling around. . . . . [I] implore both parties to act with all
due speed to get [Grand Union's appeal] before the district court
and adjudicated. . . . This is an old adversary and it shouldn't
hang around." (Transcript of October 4, 2004 Telephone Status
Conference before Honorable Novalyn L. Winfield at 8:6 11,
10:22 24, 11:4 5.) In response to Judge Winfield's request
that Grand Union diligently prosecute its appeal, Mr. Greenberg,
who now asks the Court to excuse Grand Union's failure to file
any appellate brief because the Ravin Greenberg attorney
primarily handling Grand Union's bankruptcy case left the firm
four days after the December 27, 2004, stated: "We're trying
to, Your Honor." (Id. at 11:3.) Grand Union nevertheless failed
to prosecute its appeal despite Mr. Greenberg's representation to
Judge Winfield that it would do so with all due speed.
For the foregoing reasons, Grand Union's motion for
reconsideration of the Court's April 18, 2005 Order dismissing
Grand Union's bankruptcy appeal for want of prosecution is
An appropriate Order accompanies this Letter Opinion.
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